HARMONIZATION AND PARALLELISM

Материал готовится, пожалуйста, возвращайтесь позднее

HARMONIZATION AND PARALLELISMOnce acceded to, the Convention becomes part of national law but governs only international transactions. The regime created by the Convention remains separate and independent from the regime governingdomestic transactions. Upon accession, a Contracting State is not obliged to implement the CUECIC at adomestic level. It is, however, possible to transpose some provisions into national regulations governingelectronic commerce, usually referred to as “Electronic Transactions Acts.” This has been the case inSingapore and is also being planned in Australia,64 which seems next in line to accede to the Convention. It was argued that “while the Convention and . . . domestic laws operate in different dimensions orspheres of application, electronic commerce is best served by a body of law that is seamless and makes no distinction between local and international systems.” 65 The problems inherent in cascading the CUECICsolutions to domestic law are particularly pertinent given ASEAN’s recommendation to use the Conventionnot only as a tool to harmonize e-commerce legislation on a regional level but also to apply its provisionsin domestic transactions.66 The application of the Convention to international contracts must therefore bedistinguished from situations, where a contracting state decides to amend or create domestic e-commercelaws to reflect its provisions. In the second instance, a number of legal solutions, which assume aninternational and strictly commercial character of the transaction, will apply to domestic transactions. Consequently, while achieving uniformity between international and domestic contract law, theimplementation of the CUECIC solutions creates a division within domestic contract law, with special rulescoming into operation whenever a transaction is concluded by electronic means.67 Some critical observations are inevitable. Parallel regimes are tolerable and common at an internationallevel. This is already the case in those countries, which adopted the CISG to govern international sales ofgoods. Although the CISG becomes part of domestic law, it only governs international transactions, i.e.contracts with a cross-border element. The solutions in the CISG do not affect domestic transactions. Accordingly, there is a difference between the set of rules governing domestic transactions and the set ofrules governing international transactions. Reflecting a historical evolution of national legal systems thereis no international uniformity in contract law at domestic level, i.e., every state has its own system ofcontract law. It is not immediately apparent why electronic contracting should be harmonized if traditionalcontracting is not. It is unclear why a new and untested legal instrument designed to govern internationaltransactions should serve as a template for domestic law reform. It is also questionable whether thefacilitation of e-commerce at an international level requires that e-commerce laws be harmonized at anational level.68 After all, the same could be said about contract law in general: one uniform internationalcontract law that also applied to domestic transactions would facilitate worldwide trade and provideunprecedented legal certainty. This would happen if every country in the world adopted the CISG andsubsequently amended its national laws to reflect its principles. This, however, is not the case as everycountry has its own, domestic contract law.